the residue of this instruction. Indianapolis, etc., Ry. Co. v. Hockett, 159 Ind. 678, 66 N. E. 39; Citizens', etc., Ry. Co. v. Jolly, 161 Ind. 80, 67 N. E. 935; Citizens', etc., Ry. Co. v. Hoffbauer, 23 Ind. App. 614, 56 N. E. 54; Kentucky, etc., Co. v. Quinkert, 2 Ind. App. 244, 28 N. E. 338; 5 Am. & Eng. Ency. of Law, 558. Instruction No. 13 given at the request of the appellant expressly advised the jury that railway and traction companies are not insurers of the safety of their passengers; and the instruction complained of, as well as many others, admonished them that appellee could not recover unless she was without fault or negligence contributing to her injury. It is conceded that, as a carrier, appellant is required to exercise the highest degree of care to secure the safety of its passengers, and is responsible for the slightest neglect when such negligence results in injury. In view of this strict requirement, and of other instructions given, and of the conceded facts, we are clear that the objectionable part of this instruction could not have misled the jury or harmed appellant.

It is further contended that instruction No. 4 given at the request of appellee was erroneous, which instruction reads as follows: "The fact that the plaintiff undertook to alight from the car at a time when the car was still in motion does not necessarily make her guilty of contributory negligence. As to whether she could alight from the car at the time she undertook to do so with safety, is a question of fact for you, gentlemen, to determine from all the facts and circumstances in the case. If you find from the evidence, that, at the time she undertook to alight from the car, she could have done so with safety, by the exercise of due diligence and care, then she would not be guilty of contributory negligence, even though you find that the car had not come to a full stop but was still moving." We have already shown that the court could not declare, as a matter of law, upon the conceded facts of this case, that appellee was guilty of contributory negligence. What was said in the consideration of the first proposition argued, and the authorities there cited, uphold the correctness of this instruction, and it is accordingly our conclusion that no error was committed

in giving the same to the jury.

No reversible error appearing in the record, the judgment is affirmed.

all reasonable doubt if other necessary circumstances are not, there should be an acquittal. [Ed. Note. For cases in point, see vol. 14, Cent. Dig. Criminal Law, §§ 1884, 1885.] 2. SAME.

On a prosecution for murder the evidence was circumstantial, and defendant requested an instruction to the effect that if any one fact necessary to a conclusion of guilt is wholly inconsistent with the hypothesis of guilt, it breaks the chain of circumstantial evidence upon which the inference of guilt depends, and that, however plausible or apparently conclusive all other circumstances may be, the charge must fail. The instructions given by the court declared that, to justify a conviction upon circumstantial evidence, the circumstances "must all be in harmony with the guilt of the accused"; that in such a case the jury must "be satisfied that all the circumstances proved are consistent with the defendant having committed the act," and "must also be satisfied that the facts are such as to be inconsistent with any other rational conclusion than that defendant is the guilty person." Held, that it was error to refuse the requested instruction.

3. SAME-CREDIBILITY OF WITNESSES.

Defendant was entitled to an instruction as to the duty of the jury to consider the admissions of an adverse witness in testifying that such witness had committed crimes, or sustained protracted illicit relations, for the purpose of determining her credibility.

[Ed. Note.-For cases in point, see vol. 14, Cent. Dig. Criminal Law, §§ 1889, 1890.]

Appeal from Circuit Court, Allen County; Jno. M. Smith, Special Judge.

Charles W. Dunn was convicted of murder in the first degree, and he appeals. Reversed. Henry Colerick and Barrett & Morris, for appellant. C. W. Miller, Atty. Gen., Samuel M. Hench, W. C. Geake, L. G. Rothschild, C. C. Hadley, Ronald Dawson, and E. V. Emrick, for the State.

GILLETT, J. Appellant seeks the reversai of a judgment convicting him of murder in the first degree. This is the second appeal. See Dunn v. State (Ind. Sup.) 67 N. E. 940, 70 N. E. 521. The error assigned calls in question the overruling of a motion for new trial.

It was the theory of the state, stated in its boldest outlines, that appellant choked the deceased, a girl of 10, to death, in his barn, as the result of an effort to commit on outrage upon her person, and that he afterwards carried her body to his house, and threw it, through an opening in the kitchen floor, into a cistern. Both as to the corpus delicti proper and appellant's guilty agency in connection therewith, the state relied on circumstantial evidence. Upon many points there was conflict in the testimony. In the disposition of the appeal we shall, in the main, confine our attention to the action of the court in refusing to give two instructions, tendered by appellant, and numbered, respectively, 13 and 16. Said instructions are as follows: "(13) In a case like this, where the evidence is all circumstantial, it is necessary, before there can be a conviction, that every necessary link in the chain of circumstances must be proven beyond all reasonable doubt, although some of the circumstances may be clearly proven beyond all reasonable

doubt, yet if other necessary circumstances are not proven beyond all reasonable doubt. then you should acquit the defendant." "(16)

If any one fact, necessary to a conclusion of guilt, is wholly inconsistent with the hypothesis of the guilt of the accused, it breaks the chain of circumstantial evidence upon which the inference of guilt of the accused depends, and, however plausible or apparently conclusive all other circumstances may be, the charge must fail and you should acquit the defendant."

The purpose of the introduction of circumstantial evidence is so strongly to establish the probability of the existence of a fact as to warrant the assumption of its existence. It is evident, however, that, as a working tool, the most that can be expected of such evidence is the attainment of moral certainty. Where there is a distinct paucity of fact in the evidence, the result ordinarily is that nothing more than a conjecture or suspicion is generated, but as the introduction of the testimony involves, in a greater or less degree, the effort to reconstruct the case from the very elements which before composd it, it is evident that as the number of coincidences increase, both with respect to previous experience and with respect to each other, these primary facts may form a body or chain of facts, which, by reason of its completeness and the extent to which the facts sanction each other, is sufficient to eliminate every other reasonable hypothesis than that of guilt. "The slightest possible presumption, often repeated," says Butler, in the introduction to his Analogy, "will amount to a moral certainty." It is, or should be, the effort of the prosecutor to prove all of the known surrounding facts, so that the body of the charge may as far as possible be articulated. It will often be found, however, where the facts are numerous, that evidence is wanting of some fact necessary closely to connect the facts involved in the hypothesis, but questions of this kind can only be dealt with in the concrete; whether the want of direct evidence upon a fact involved in the assumption ought to produce an acquittal, is a question which must, in many cases, address itself to the good sense of the jury, subject to the revisory power of the trial court, the result depending largely upon whether there is a real rather than a seeming break in the connection, thus leading to the possibility of innocence. It is vital in such a case to consider the extent, if at all, that the surrounding facts may be said to press on to the conclusion which the hypothesis of the state involves. In view of the manner in which facts may act upon each other, both by way of supplying omissions in the direct evidence and strengthening weak testimony, we are of opinion that the court ought not to inform the jury that every necessary link in the chain of circumstantial evidence ought to be proved beyond a reasonable doubt. Our reason for this conclusion is that in the use

of the word "link" the figure of speech becomes misleading, since the integrity of the chain depends upon the resisting power of the weakest link, unaided by any other. It is true that the absence of the smallest link in the chain of evidence may so break the connection as to create a fatal weakness in the state's case, depending upon its nature and the character of the other facts, but it is obvious that an instruction should not be given which would have a tendency to lead the jury to infer that each and every subsidiary fact must be proved beyond a reasonable doubt, or that a strain upon any one of them above the breaking point would necessarily destroy the whole fabric of the evidence. Wade v. State, 71 Ind. 535; Hinshaw v. State, 147 Ind. 334, 47 N. E. 157; 1 Blashfleld, Instructions, §§ 320, 321, and cases cited. There must in a substantial sense be a chain of facts, connecting the crime with the criminal, which is sufficient to establish guilt to a moral certainty, but, apart from the preliminary process of comparison which the consideration of circumstantial evidence ought to involve, it is evident that ultimately the question as to whether the circumstances require that conclusion must depend upon their force when held in combination. Burrill, Cir. Ev. (2d Ed.) 80, 150, 179. Subject to this explanation, we are prepared to reaffirm the declaration of this court, in Sumner v. State, 5 Blackf. 579, 36 Am. Dec. 561, that, "the party upon whom the burden of proof rests, is bound to prove every single circumstance which is essential to the conclusion, in the same manner and to the same extent as if the whole issue had rested upon the proof of each individual and essential circumstance."

It has seemed to us not inappropriate, although we have been unable to sanction appellant's instruction No. 13 as a correct exposition of the law, that we should consider the proposition therein involved, since the instruction afforded a basis for some statement as to the manner in which a hypothesis may be established; but in passing to appellant's instruction No. 16, which the court refused to give, it is evident that we have to deal with the obverse side of the question. As we have already pointed out, the manner of raising a presumption to a basis of such high probability as to justify a jury in acting upon it as a fact in a matter involving life or liberty, is a process. While the prosecutor may not be called on to account for every fact which the evidence discloses, and while he may in many cases rely upon the composite effect of his evidence in establishing his hypothesis, yet it is evident that where some fact necessary to a conclusion of guilt stands out in contradiction to the facts which afford the basis for his general assumption, the matter necessarily resolves itself into a weighing of probabilities, and in such circumstances it cannot be said that the evidence shows, by exclusion, that the

defendant is guilty. The facts in the case should be tested by the assumption of innocence as well as of guilt, and where the jury reaches the ultimate conclusion that a fact exists which is necessarily inconsistent with the latter assumption, the defendant must be given the benefit of the doubt. In substance the language of the instruction in question is found in the opinion of Shaw, C. J., in the leading case of Com, v. Webster, 5 Cush. (Mass.) 295, 52 Am. Dec. 711, and this statement of the law was used by Mitchell, J., as an appropriate declaration of the legal principle, in Cavender v. State, 126 Ind. 47, 25 N. E. 875. "It is essential," observes Starkie, "that all facts should be consistent with the hypothesis. For as all things which have happened were necessarily congruous and consistent, it follows that if any one established fact be wholly irreconcilable with the hypothesis, the latter cannot be true. Such incongruity and inconsistency is sufficient to negative the hypothesis, even though it coincide and agree with all the other facts and circumstances to the minutest extent." Ev. star page 506. In Mr. Burrill's valuable work on Circumstantial Evidence, we find him continually cautioning against precipitancy in the mental process, not only that inconsistent facts may be observed, but that it may be perceived whether the evidence concerning them is true or can be reconciled. Circ. Ev. (2d Ed.) 33, 85, 153, 181, 192, 207. Under the third fundamental rule declared by him, that "the hypothesis of delinquency or guilt should flow naturally from the facts proved, and be consistent with them all," Mr. Burrill states: "By this rule, the attainment of three important objects (all of them indispensable conditions of accuracy in the conclusion proposed), is secured; namely, an examination of all the facts of the case; an examination of them, free from bias or prejudice; and an examination of the case on both of its sides, or in its aspects of favor as well as disfavor to the accused. Its practical effect is to prevent precipitancy in the inferential process, and to combat what is often the tendency of the mind to jump at conclusions, when under the influence of impressions derived from a few prominent facts, without examining all the facts of the case, and allowing them every interpretation which they will reasonably admit. The process is to be a natural one, without the use of any mental violence in straining facts beyond their real significance, of adapting them, in any degree, to preconceived opinions. By requiring the hypothesis of guilt to be consistent with all the facts, the rule secures to the proposed conclusion an essential element of truth, while allowing all due weight to the supposition of possible error; and prominently recognizes the existence of that opposite side (contrarium), which is contemplated and embodied in the great fundamental maxim of presumption from facts." Circ. Ev. (2d Ed.) 735.

It is contended by counsel for the state

that the instruction in question was covered by certain general instructions, in which it was declared, among other things, that to justify a conviction upon circumstantial evidence the circumstances "must all be in harmony with the guilt of the accused," that in such a case the jury must "be satisfied that all the circumstances proved are consistent with the defendant having committed the act," and "must also be satisfied that the facts are such as to be inconsistent with any other rational conclusion than that the defendant is the guilty person." It is the right of a party charged with crime to insist, if he tenders proper instructions, that the court shall instruct the jury on all legal questions necessary to enable it to reach a correct verdict, Parker v. State, 136 Ind. 284, 35 N. E. 1105. There is a right to have given an instruction which contains a specific application of a rule of law to the evidence. Fahnestock v. State, 23 Ind. 231; Carpenter v. State, 43 Ind. 371; Hipes v. State, 73 Ind. 39; Woolery v. Louisville, etc., R. Co., 107 Ind. 381, 8 N. E. 226, 57 Am. Rep. 114; McCormick v. Smith, 127 Ind. 230, 26 N. E. 825. In Fleming v. State, 136 Ind. 149, 36 N. E. 154, where the defendant relied on evidence of an alibi, it was held that it was error to refuse to instruct that a reasonable doubt might arise from a consideration of the alibi evidence, although the court had given a general instruction upon the subject of reasonable doubt. The instructions given by the court in this case failed to bring out an undoubted legal proposition into the bold relief that it was entitled to, and they were not so well calculated, as the instruction tendered, to lead the jury to understand that the inferential process is largely one of comparison. Indeed, it is clear that, under the instructions given, the jury would be more likely than they would otherwise have been to reject a possible important fact as inconsistent, rather than abandon a hypothesis that, in other respects, might have seemed to its members to be well maintained.

We do not think that, in a case of this nature, involving life and liberty, we mistake our duty in holding, since a proper instruction was tendered, that appellant was entitled to a specific statement of the well-known doctrine concerning what Bentham terms the "disprobabilizing fact." 3 Rationale Jud. Ev. 13. Because of the failure to give said instruction, the cause must be reversed. We may state, in passing, that we are impressed with the view that appellant was entitled, in the circumstances of this case, had he asked it, to an instruction as to the duty of the jury to consider the admissions of a witness, in testifying, that such witness had committed crimes, or had sustained protracted illicit relations, for the purpose of determining whether the credibility of the witness was thereby impeached or the testimony of such person impaired. It is our opinion, however, that the instructions tendered on that subject were properly refused, since they

were too much calculated to lead the jury to infer that, in the court's view, the witness ought not to be believed.

Judgment reversed, and a new trial ordered. The clerk will issue the proper order for the return of the prisoner.

(38 Ind. A. 211)

et al. v. ROACH.

SOUTHERN RY. CO. et al. (No. 5,685.) (Appellate Court of Indiana, Division No. 2. June 7, 1906.)

1. APPEAL-PRESENTATION OF QUESTIONS IN LOWER COURT-MOTION FOR NEW TRIAL. Any error in overruling a petition to remove a case to the federal court is not available on appeal, where it was not made a reason for a new trial.

2. CARRIERS INJURIES INJURIES TO PASSENGER PLEADING INCONSISTENCY OF AVERMENTS.

In an action for injuries to a person accompanying a shipment of horses, inconsistency in averments of the complaint in alleging that the train left the track by reason of rotten and defective ties permitting the rails to spread, and that the breaking of the axle of a car caused the train to leave the track, does not make the complaint bad.

[Ed. Note. For cases in point, see vol. 9, oint, Cent. Dig. Carriers, § 12752.1 3. SAME-DEFINITENESS.

In an action for injuries to a person accompanying a shipment of horses, an allegation that the railroad company maintained a switchyard in a certain city and kept a car inspector whose duty it was to inspect all cars and trains passing through that yard, though failing to specifically state that the train in question passed through that yard, did not render the complaint bad.

One who, being the agent of the owner of horses, rode on the freight train on which they were shipped, was a passenger, and did not assume the risk of injury from negligence of the carrier.

[Ed. Note.-For cases in point, see vol. 9, Cent. Dig. Carriers, § 980.]

5. SAME-PLEADING-DEFINITENESS.

In an action for injuries to one who accompanied a shipment of horses, an allegation that he was on the train at the time of the accident, was a sufficient statement as to where he was, in the absence of a motion to have the complaint made more definite.

6. APPEAL-PRESENTATION OF OBJECTIONS IN COURT BELOW-PLEADING - COMPLAINT SUFFICIENCY.

Where there is no essential averment missing from a complaint, and it is sufficient to bar another action for the same injury, it is sumncient where it is first attacked on appeal.

[Ed. Note.--For cases in point, see vol. 2, Cent. Dig. Appeal and Error, §§ 1226-1240.] 7. CARRIERS-INJURY TO PASSENGER - CONTRIBUTORY NEGLIGENCE - TRIAL - SPECIAL FINDINGS.

In an action for injuries to a passenger on a freight train, special findings that he was riding in the cupola of the caboose at the time of the accident, that there were seats in the caboose, that the cupola was for trainmen only, and that he got off before the caboose stopped, did not show him guilty of contributory negligence.

Appeal from Circuit Court, Dubois County; Eugene A. Ely, Judge.

Action by John L. Roach against the

Southern Railway Company and another. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

A. P. Humphrey, Jno. D. Wellman, and M. W. Fields, for appellant. W. E. Cox, R. W. Armstrong, and S. H. Esardy, for appellee.

WILEY, J. Appellee recovered a judgment in the court below against appellants for injuries sustained by him on account of their alleged negligence. The cause was put at issue, and tried upon the amended first paragraph of complaint. The appellant, the Southern Railway Company timely filed its petition and bond to remove the cause to the Circuit Court of the United States for the district of Indiana, on the ground of diverse citizenship and separable controversy, it being a foreign corporation, and a citizen of Virginia. This motion was overruled. Joseph Steinhart was made a codefendant, but the jury found in his favor. Neither of the appellants moved for a new trial. The jury, with their general verdict, answered interrogatories submitted to them, and appellants each moved for judgment on such answers, notwithstanding the general verdict. These motions were overruled. The errors assigned are: (1) Overruling the petition to remove. (2) That the complaint does not state facts sufficient to constitute a cause of action. (3) Overruling the motion for judgment on the answers to interrogatories.

The error, if any, in overruling the petition to remove the case to the federal court, is not available on appeal, because it was not made a reason for a new trial. It is here made an independent assignment of error, and under the holding in the recent case of Southern Railway Co. v. Sittasen (Ind. Sup.; decided March 6, 1906) 76 N. E. 973, this is not sufficient to present the question.

There are three acts of negligence charged: (1) Failure to inspect; (2) rotten and defective cross-ties, that would not hold the spikes, by reason of which the rails spread and gave way, throwing the train violently from the track; and (3) running a heavy freight train over such defective track, and at a high and dangerous rate of speed. It is charged that appellants engaged, for a fixed consideration, to carry from one point to another on "the line of its railway, plaintiff and one car load of horses," which horses were the property of Peter Schnell; that appellee was the agent of Schnell, and took passage on the car to take care and control of said horses and was carrying at the time a "shipper's pass," which was given him in consideration of said hire for carrying the car of horses. Then follows the averments in regard to the rotten ties, defective joints, spreading of the rails, and the derailment of the train. It is then charged that appellants were negligent in failing to inspect "the car axle on one of the cars

that made up said train, and they carelessly suffered and permitted said car to remain in said train, with a defective and broken axle"; that if appellants had examined said car, as it was their duty to do, "at the city of Huntingburg, Ind., * * * said defendants could and would have discovered said defective and broken axle"; that by reason of said carelessness and negligence on the part of appellants, "said axle broke down, and caused the train to leave the track," etc., by which appellee was injured. There is an inconsistency in two of the averments of the complaint in this, viz.: It is first alleged that the train left the track by reason of the rotten and defective ties, which would not hold the spikes, thus causing the rails to spread, by reason of which the train left the track; and second, it is charged that the breaking of the axle caused the train to leave the track. We cannot, however, hold that this inconsistency makes the complaint bad.

The principal objection urged to the complaint is that it alleges that it was appellants' duty to inspect the car at Huntingburg; that Dienhart, one of the defendants below, was appellants' servant, charged with that duty, and that there is an entire absence of an allegation that the car was ever at Huntingburg. In this regard, as far as the complaint goes, is to charge that appellants "did keep and maintain a switchyard in the city of Huntingburg, * * * and keep and maintain a car inspector," whose duty it was to inspect all cars and trains that pass in and through said yard. While these allegations do not in terms state that the train or car upon which appellee was riding, passed through said yards, yet we cannot say the complaint is bad for that reason. The complaint, in this regard, might have been made more specific, if a motion to that effect had been made.

Another objection is that the complaint shows that appellee took passage on the car containing the stock, and this being true he assumed the risk, and hence cannot recover. This point is not well taken. Under the facts pleaded appellee must be regarded as a passenger for hire. Lake Shore, etc., Ry. Co. v. Teeters (Ind. App.) 74 N. E. 1014; Lake Shore, etc., Ry. Co. v. Teeters (Ind. Sup.; at this term) 77 N. E. 599; Ohio, etc., Ry. Co. v. Selby, 47 Ind. 471, 17 Am. Rep 719; Ohio, etc., Ry. Co. v. Nickless, 71 Ind. 271; Louisville, etc., Ry. Co. v. Faylor, 126 Ind. 126, 25 N. E. 869; Delaware, etc., Ry. Co. v. Ashley, 67 Fed. 209, 14 C. C. A. 368; Waterbury v. New York, etc., Ry. Co. (C. C.) 17 Fed. 671; New York, etc., Ry. Co. v. Blumenthal, 160 Ill. 40, 43 N. E. 809; Evansville, etc., R. Co. v. Mills (Ind. App.; present term) 77 N. E. 608.

It is finally argued that the complaint is bad because it does not show any connection between the accident and the injury, in that it does not show where appellee was at

the time of the accident. It is shown that he was riding on the train at the time of the accident, and if appellants desired the complaint to have been more specific they could have done so by motion. The complaint is attacked for the first time in this court. There is no essential averment missing. The complaint is sufficient to bar another action for the same injury. This is sufficient where the attack is made for the first time on appeal. Xenia Real Estate Co. v. Macy, 147 Ind. 568, 47 N. E. 147; Efroymson v. Smith, 29 Ind. App. 451, 63 N. E. 328; Cleveland, etc., Ry. Co. v. Baker, 24 Ind. App. 152, 54 N. E. 814; Bertha v. Sparks, 19 Ind. App. 431, 49 N. E. 831; City of South Bend v. Turner, 156 Ind. 418, 60 N. E. 271, 54 L. R. A. 396, 83 Am. St. Rep. 200; Town of Knightstown v. Homer (Ind. App.) 75 N. E. 13.

The remaining question for consideration is that presented by the action of the court in overruling the motion for judgment on the answers to interrogatories. If the facts specially found are in irreconcilable conflict with the general verdict they will control, and in such event it is error to overrule such motion. By the general verdict the jury found and determined all material facts in appellee's favor. Such finding establishes that appellants were guilty of one or more of the acts of negligence charged, and hence such finding was within the issues tendered by the complaint. The verdict also included a finding that appellee was without fault.

It is urged that the answers to interrogatories affirmatively show that appellee was guilty of contributory negligence, that by reason thereof they are in irreconcilable conflict with the general verdict, and hence appellant's motion for judgment should have been sustained. The facts, as exhibited by tue answers to interrogatories upon which appellants base this contention are as follows: That appellee was riding in the cupola of the caboose at the time of the accident; that this seat was five or six feet above the floor of the caboose; that there were seats in the caboose; that the cupola was for trainmen only, and the seats below was the usual and proper place for appellee; that the caboose and seven or eight cars in front of it remained on the track attached together; that the doors of the caboose were shut; that the appellee got off before the caboose stopped; that the track under these cars was in good repair, and undisturbed by the wreck. We are unable to see anything in the facts thus disclosed to indicate that appellee was guilty of contributory negligence. It is not made to appear that riding in the cupola of the caboose, or his getting out of it before the train stopped, had anything to do with his injury. Taking the facts specially found as a whole, they tend strongly to support, rather than to contradict, the general verdict. Judgment affirmed.